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What's wrong with software patents?

I know that many people come to the FFII—as I did—because they feel a deep sense of injustice at how the smaller players in IT are consistently squashed by special interests and monopolists. But I’m going to look at our core concern—software patents—from a different angle, one based more on economics and less on emotions.

The simple question “what’s wrong with software patents?” stirs up controversy and divides the IT industry into two camps like no other. Every group has their own ideology about software patents. Those who don’t like them claim that they are anti-competitive, that they are tools used by industry giants to crush free and open software, that they are bad for innovation, that they are monopolies, etc. Those who like them claim that they are simply units of intellectual property, to be traded like any other commodity.

What is property?

All property is a monopoly. All property can be traded, bought and sold, and can make money for its owners. The state can declare any resource it likes to be “property”. We are, as citizens, property of the state, and in some countries we can still be traded, bought, and sold, and make money for our owners.

But these are useless truisms. I can make tenuous comparisons between patents and slavery, and stir up all kinds of emotions. I’m not going to do that. Instead, I’m going to look at the very meaning of property, and explore the dynamics that drive the basic notions of “private property”.

Property, of any kind, consists of a definition and a system of enforcement. All the rest is subjective. There is no intrinsic reason that land or potatoes should be different from ideas, time, or air. Anyone who argues that it is “right” or “wrong” to define and enforce certain types of property must prove this using more than just rhetoric and dogma.

The case for private property

Let’s look at a well-understood form of property: land rights. Most countries are divided up into plots large and small. The very concept of “country” is property, but a thousand years ago, only a small part of the world’s surface, in and around human habitations, was considered property. The rest was common lands, belonging to all and none. The process of turning common lands into shared property, and then into private domains (the “tragedy of the commons”) was driven by discussions very similar to the ones we hear today. The process was driven by greed to some extent, but also by real needs of evolving economies driven by new technologies in agriculture and industry.

A farmer who owns his land is far more likely to look after it than a farmer working on a collective. Similarly, it is clear that private home ownership is a healthier model in a modern money-based economy than state-ownership of homes. Private ownership of some things works very well.

The case for common property

However, this is not the whole story. Private ownership is not a panacea, and for every example where private ownership is “right”, I can find one where it is “wrong”. The roads and streets that connect those farms and houses are owned and managed collectively. The rain, air, and sun is owned by no-one. The wild animals and insects that form an important part of the ecology are collectively owned.

The five principles of property

There are actually good economic reasons for choosing a private property model for some resources, and not for others. There are five key rules to consider (there may be more, these are the most obvious ones to me):

Is the resource mobile, or fixed? This criteria defines whether it is possible to accurately define the resource, or not. A mobile resource—such as migrating birds or fish—does not fit the private property model. Fixed resources, such as lobsters, do.

Does the resource have clear boundaries, or not? This criteria defines whether it is possible to accurately enforce the monopoly, or not. Land can be well-defined. Art cannot be well-defined.

What generates more wealth—exclusive ownership or sharing? This criteria defines whether it is useful to consider this resource as property at all. Exclusive ownership of a house generates wealth, but exclusive ownership of roads does not (which is why we removed toll bridges on our roads).

Is the property system economical? In other words, is the definition and enforcement of the property cheap? If so, it is accessible to all. If not, it becomes a priviledge of the rich, and the system itself stops being economically neutral.

Is the property system well-bounded? In other words, is the definition of the property clear and unnegotiable? If the definition can be manipulated and changed, then the system that manages it will grow in an unsafe manner.

All forms of property can be tested against these five rules. The rules are, ultimately, self-enforcing because any society that ignores them will find itself paying the cost, and competition between societies punishes those that choose inefficient economic models.

The dangers of bad property systems

A well-defined property system can be incredibly powerful, and badly-defined property systems can be very damaging. I’d argue that what brought down the Soviet Union was not the political system, nor military spending, but simply the fact that private ownership of farms and houses was impossible. There is a direct relationship between house prices (which mainly depend on availability of land) and economic growth, in many countries. Home ownership creates a middle class, which is the main driver of modern economies.

Let’s see what happens when we break the rules. If we try to create monopolies on mobile resources, we over-exploit those resources. If we try to enforce monopolies that don’t have clear boundaries, we spend a lot on lawyers. If we create monopolies on resources that should be shared, we lose competitive advantage. If we create expensive property systems, we unleash special interests. And if we create unbounded property systems, those special interests will grow out of control.

Property systems for the software business

So I’ve defined five economic rules that we can apply to any form of property to measure whether it is a good, or bad, concept. Let’s now apply these to the main forms of property that are used in the IT sector, and see what we get. The four main property forms are: copyright, trademark, patent, and trade secret (which though not defined as IPR, is a real and useful form of property):

Copyright: it applies to a fixed resource: a self-defining written expression. It has clear boundaries (the document or work). Exclusive ownership does produce wealth, but sharing seems to be a stronger driver, and models such as the GPL that encourage both appear to be the most efficient at producing value. The copyright system is cheap and well-bounded, except when it comes to lifespans, and we’ve seen copyright terms extended to life+70, which is extraordinary in today’s digital era.

Trademark: it applies to a fixed resource: a name, logo, or phrase. It has clear boundaries (the mark). Exclusive ownership produces the most value—sharing of marks just weakens them. The trademark system is very well-bounded, though it could be cheaper.

Software patent: it applies to mobile resources: new ways of doing things, or methods. It has unclear boundaries (methods are difficult to define absolutely, and they overlap in horribly complex ways). It uses exclusive ownership for resources (new ideas) that produce much more value when shared. It is poorly bounded (it depends on a set of negotiable definitions such as “technical effect”), and it is very expensive.

Trade secret: it is fixed (in your firm). It has clear boundaries (individuals may not pass secrets outside the defined group). It depends on exclusive ownership. It is a well-defined system that is easy to apply, and cheap (based on simple contract).

The conclusions are clear: copyright, trademark, and trade secret are good forms of property for the software business, though copyright terms are a problem. Patents are a bad form of property for the software business, because they amplify the general weaknesses of the patent system:

Patents claim to own ideas, which are highly mobile resources, and in software, more mobile than most other industries.

Patents have unclear boundaries, and in software these boundaries are even less clear than in other industries.

Patents reduce the sharing of new ideas, and software depends on a higher volume of sharing of ideas than other industries.

Patents are an expensive property system, and most software innovation is driven by unfunded grass-roots work.

Patents are not a well-bounded property system, and in software a boundary between “good” and “bad” patents cannot be drawn.

It is significant, in my opinion, that patent industry has focussed almost exclusively on weakening the definition of software patents, and on strengthening their enforcement. There has been little or no discussion about the basic justification for creating this form of property, apart from the uselessly broad claim that “ownership of [certain classes of] ideas promotes investment in innovation [in certain sectors]”. This claim, which has always underpinned the patent system has been used to justify a gold rush, a land-grab of ideas in sectors where innovation actually depends on sharing, not exclusion.

Software patents are a new toll barrier

Many industries find that poor quality patents are a problem. But no other industry that has relied extensively on copyright has been subjected to patenting. The use of patents in software looks a lot more like the errection of a massive new system of private tolls and taxes, than the enablement of a new properties class.

Software patents were enabled in the USA in 1982 by a Supreme Court decision. After almost twenty-five years, we would expect to see this new form of property either proven, or disproven. The bulk of the software sector should, by now, be using patents as their primary tool for justifying new investments. There should be software patent success stories, to match the many success stories that were and are driven by other forms of intellectual property.

These success stories are just not there. Instead, we see a sorry parade of lawsuits. IBM—who has the largest software portfolio, and who has claimed that it is against business method patents—has just sued Amazon for infringing on several business process patents.

Conclusion

In this article I’ve examined software patents from the fundamentalist view point of how well a property system functions. This is not art, but science. We can document and measure, and we can prove or disprove property systems.

No sane person can claim that all private property is good, or that all private property is bad. Would it make sense to sell off all our streets to private owners? Would it make sense to allow individuals to collect tolls on bridges, borders, crossings, and rivers? All these property systems have been tried. There is no firmer believer in private property and punitive enforcement than a warlord.

No honest person can claim that it’s a choice between “privatising everything” and “an anti-property communist state”. The choices are between models that work, and models that do not. History is filled with examples and experiences, and we must recognise and learn from those models, or we will make stupid and avoidable mistakes. There is, behind our iMatix building in Brussels, a street that was privatised some decades ago. I’ve no idea what the intention was, but today we can see the results via Google Maps. The privatised street has become a wasted area, a car park, filled with weeds.

Comments

I've drawn a very similar conclusion some time ago. As we are obviously powerless to stop the lobbyyists and bought in goverment agencies, and since laws are passed above our heads that determine our work to a large degree, there is only one solution left. Protest. But because this is a topic that isn't easely explained to a broad public, and frankly, because the consumer simply doesn't care, and because the numbers of developers is relatively small, marching up and down the street will bring no effect.

This argument doesn't include any analysis -- it merely states conclusions. For example: "Software patent: it applies to mobile resources: new ways of doing things, or methods. It has unclear boundaries (methods are difficult to define absolutely, and they overlap in horribly complex ways). It uses exclusive ownership for resources (new ideas) that produce much more value when shared. It is poorly bounded (it depends on a set of negotiable definitions such as “technical effect”), and it is very expensive." Questions: How do you derive your statement that new ideas would produce more value when shared? You don't back that up. How are "new ways of doing things" mobile resources? How are they more like a "migrating bird" than a "lobster?" At its core, the idea of a patent is that the creator of the idea owns it. I think the only problem with software patents is that the USPTO is not yet able to differentiate the "new ideas" from those that already exist. Once that's cleared up, and it only makes sense that it will be, I believe that exclusive ownership of ideas will provide more innovation for the economy. Notice how I state this as an opinion and not some sort of analysis.

Q: How does one conclude ideas generate more value when shared?
A: An idea that is not used cannot produce value. Useful ideas are valuable to anyone using them, and the fact someone else is using an idea does not diminish its value to you except in the sense of competitive advantage. Example: I know how to add numbers. Everyone who knows how to do this task derives a benefit from it. The fact you know how to add numbers in no way deprives me of those benefits. However, if I am in competition with you, it would benefit me to deprive you of that ability so that I might have significant advantages over you. In the case of ideas, you can hurt someone else by prohibiting use, but you are not directly damaged or prevented from using it when the idea is shared. Thus, the more people with access to the idea, the more benefit a society can obtain and the more value is rendered.

Q: How are 'new ways of doing things' mobile resources?
A: A mobile resource is one that travels outside controllable regions. A fish pen is a controllable region. An ocean is not. Ideas 'travel' by finding utility in unpredicted areas. The same software that might identify faulty widgets by shape might also be applicable in uncounted other areas, sorting mail, picking Lotto numbers, etc. Code re-use is of enormous benefit to a programmer. Making it illegal hampers their productivity by orders of magnitude.

Note: The USPTO is _NOT_ charged with protecting 'new' ideas. It is only charged with protecting the first non-obvious creation brought to their attention. 'Obviousness' of an invention is so ill-defined that patent challenges normally require a minimum of $50,000 merely to consider fighting it. 'First' is similarly problematic. So much so that a major feature many patent reformers want is removal of the inconvenient 'first to create' criteria and replacing it with a far simpler to prove 'first to file' option instead. The stated purpose of patents is to encourage the creation of new inventions by insuring the first creator will gain a profit from it. Software is incredibly cheap to make, but a lawsuit over it is expensive out of all proportion to the original benefits. There existed no dearth of new software inventions before patents applied, but now that they do programmers and researchers explicitly AVOID many areas just so they won't have to worry about it. There is provably less innovation and useful product produced as a result.

The USPTO grants patent to the first entity to fully conceive of the invention (often the first to reduce the invention to practice, aka build the thing). It has nothing to do with who is first to file with the USPTO (although many other countries do use the first-to-file method).

I see open source gaining more momentum every day. Will it's widespread use cause the patent system to finally either fail completely or get re-designed? Unfortunately, the article author is right, people don't understand the issue so we're all kinda screwed because of this. Which is why the League of Technical Voters and such are a very good step in the right direction. If we could get everyone who was involved in patent law to read and contribute to a wiki on the subject, it would help everyone involved.

There is of course no literal ownership going on here. But ask yourself why that penal code applies to you. Citizenship is acceptance of the laws of a group, and the group does, to some degree, own you. This is why - for example - I once spent ten months as an army conscript, working for nothing.

All digital things are not subject to scarcity, yet can be owned. My writings, my software, is my property. The scarcity is the ability of my mind to produce them. Scarcity is relevant to the value of something, but not its role as property. A rare bird can be scarce, and valuable, but is not therefore property.

Perhaps you mean that ideas are intangible. But ideas have been property since the start of the patent system - all inventions are ideas. One of the special things about software is that it's purely information, from start to end, unlike traditional industries that always have a physical product.

There is no cause and effect relationship between scarcity and property. Scarcity is only relevant in the discussion of the burden of inefficiency created in the free market by intellectual property rules. Property claims (i.e. "your writings, your software"), however, should be addressed in the context of restrictions on other people's freedom such claims imply and, in case of digital content, these restrictions are unacceptable.

"He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."

In other words...

"If you have an apple and I have an apple, and we exchange apples, we both still only have one apple. But if you have an idea and I have an idea, and we exchange ideas, we each now have two ideas."

Ludwig van Beethoven said :

"There ought to be but one large art warehouse in the world, to which the artist could carry his art-works, and from which he could carry away whatever he needed. As it is, one must be half a tradesman."

What a shame his influence cannot be used to defend our freedoms today.

My first contact with the patenting system was to try the 'Penny for Your Thoughts' company that helps inventors get patents and then markets them to manufacturers, in exchange for some (or most) of the profit. I used my "invention" of swing set anchors that I rigged up to keep my daughter's swing set from tipping over. What I discovered was that I had to create a scaled drawing detailing my invention. This accomplished two things: 1) it established the scope of my invention, even for a lay-person, and 2) it made it possible to compare my invention with other similar inventions in a straight-forward way. (FYI, the company wanted much more money up front than I was willing to pay, but the experience was very interesting.)

After having performed a brief search for any patents that might affect my application. I became physically ill from the stress of seeing the number and scope of the patents that could be interpretted by a non-developer to describe my application and had to stop. I felt like I was playing MineSweeper with only a couple dozen empty spaces in a 32x32 field.

The problem with software patents is that the detailed design is difficult to understand, even for a developer, and probably completely unintelligible for a lay-person. This makes it virtually impossible to determine the scope of the alleged invention. And in turn, comparing a patent to an actual program is a case of he-said/she-said. No judge or jury will ever be able to judge the technical merits of the case.

Therefore, what this has created is a special privileged class--software patent holders--who have an advantage even beyond other patent holders. They can claim that just about any program in the very broad category of their patent is in violation. I would think that there is some legal precedent disallowing the creation of this special class, but IANAL.

At the very least, I think the US PTO should require that a prototype of the invention be included with the patent application with instructions on how to run it. If this could be mandated by the courts, then the number of applications would undoubtedly drop, as well as the percentage of approved patents.

contrary to common wisdom. you don't patent an idea. Ideas are not patentable per say. You actually apply for a patent of an implementation of an idea. What really gets awarded though, is a set of claims about your implementation of the idea.

With a little creativity in expression, the claims can be very general or vague. That gives the lawyers lots of wiggle room to try and capture as much income as possible. Add to this that judges very seldom understand the issues in a technical discussion, and some very stupid decisions get made.

That's how the US patent system winds up giving out patents on the wheel every 10 years or so. They didn't actually claim to have invented the wheel, but the claims are so broad that any round object used for transportation can come under the scope of the patent.

Fortunatly, judges will narrow the scope by disallowing some (though usually not all) claims when the trial makes it obvious even to them what is happening. That usually takes millions of dollars in trial expenses.

Having recently applied for a software patent I have given this a lot of thought as I am an avid Slashdot reader. Meaning I am keenly aware of the large misuse of software patents and the growing movement against them. I am also aware that there have been many patents granted for software that should not have been.

A part of the problem in the larger debate that is not often addressed is that many patents have been granted that seem to provide the patent holder with a monopoly on achieving some goal, whereas we traditionally think of a patent as providing a monopoly on some *particular means* for achieving that goal.

Consider the every day goal of providing light for a room. There are many known ways to do so: incandescent bulbs, fluorescence, LEDs, candles, fiber optics, etc. Each of these provides some unique means for solving the basic problem of providing light. Any patents that may have been granted to the inventors of each of these technologies seem (to my eyes) to be perfectly reasonable. However if the USPTO were to grant a patent for providing light (with no specific implementation) we would have a serious problem.

It seems though that many software companies have gotten away with patenting light, so to speak. The patent office seems to have some trouble distinguishing between the tangible (wires, capacitors, circuits) and intangible (software) aspects of computing and so have granted patents for what (to them) seems to be a specific implementation. For example, Slashdot ran a piece a while back on patent granted for online testing (http://yro.slashdot.org/article.pl?sid=03/02/04/0513214). Nevermind about the (non)obviousness of this patent, in this case the PTO has granted a patent for the *goal* of providing a plurality of tests online, with little information regarding the specific implementation. For example, are the tests generated dynamically or are they stored as static files. Is the test presented in HTML or some other form (XML, RTF, binary, proprietary). How are the results calculated? How is the testing information transferred (HTTP, FTP, SFTP, proprietary), and how are the results returned?

The only particularly unique ascpect of this form of test taking is that the tests are computerized a coupled to the internet as summarized in the patent: "the first computer including software means for generating the test and software means for posting the test on the Internet; and a second computer operatively coupled to the Internet, the second computer operative to allow a user to take the test and receive test results." For the patent examiner unfamiliar with the intracacies of software the patent is perfectly valid. All he knows is that the test is being sent down a wire (there's even a diagram of this in the original application) and that particular (tangible) aspect makes it unique from other methods of taking tests. He does not automatically recognize the distinction between a custom, encrypted, stand alone, proprietary test taking application and a no brained HTML form. The distinctions here are basically intangible. To the examiner one window with test taking buttons on the screen is the same as another.

I would argue that the particular "nuts and bolts" of a software application consist of very specific algorithms (e.g. marching cubes algorithm which is used to trace 3d boundaries) and a very specific collections of user interface elements and behaviours (e.g. the "Start" button, and all that lies therein). Very specific algorithms such as marching cubes generally require a great deal of research to devise and do not make for goal oriented patents. If for example, I devised an algorithm that achieved the same goal as marching cubes, only using Fourier transformations (as opposed to the adjacent cell checking of marching cubes), then I would be perfectly justified in patenting my algorithm and licensing it to Lucas Arts. Likewise if I could develop a set of interface elements that provide convenient access to my computer files and applications (but did so in some manner distinct from the "Start" button) then I could again file for patent and license the invention to Microsoft. The goals (tracing 3d shapes, providing access to applications) however, are not nor should they be patentable. The lamentable fact is that patents for *goals* such as these have been and are being granted.

Thank you for this excellent comment, I think this is a great foundation of an argument against software patents.

If the courts and PTO were able to understand this, then I think it would cause some other problems with the patent process. Namely, with software, it is very easy to create a different way to achieve the goal. For example, if I replace an algorithm with one that just adds some redundant steps (read a dataset from XML instead of relations, for example) is that now a new "invention"? With physical items, making a new type of propellor takes more research, effort, etc, but with software it would be very easy to get around patents like this. This makes the existing patent system much weaker for software.

This is probably what justifies the PTO and courts making software patents more general, but that's probably a poor workaround to a fundamentally flawed system wrt software.

Thanks again for giving what seems like a strong foundation to start the argument with.

I largely agree with this distinction (between the goal and the means to achieving it) being at the core of the problem of software patents. However, I'm not sure a patent system that were somehow corrected to deal with this issue would be of any particular use anyway. Why? Because solving a software problem (achieving a goal) by some specific means (i.e. construction of some algorithm) is equivalent to writing the code, and when you have the code you have the copyright. With the copyright, you can license your code to anyone, anywhere under whatever terms you like. And it cost you nothing (except the time it took to produce the code).

Now, an objection to my argument might be this:
consider a generic, abstract algorithm (say, the Ford-Fulkerson algorithm for finding a maximum flow in a connected graph). An implementation of this algorithm in Ruby would have given its creator a copyright for that code. Another person implementing the same algorithm in Python would not infringe on the Ruby copyright (perhaps depending on how it was implemented; the languages are quite similar).

Any (patent) system that aims to attribute exclusive ownership over pure mathematical ideas (or, simply, discovered truths) must somehow include a way to define scope. That's what the hypothetical objection above is all about afterall. The inventor might have come up with the algorithm when solving a particular problem coding in Ruby. On the other hand, he or she might have studied the problem of finding a maximum flow in a connected graph in the pure mathematical, abstract sense and simply implemented a solution in Ruby.

An exclusive rights system would want to grant the forementioned inventor exclusive rights over her "invention". It is my opinion that, granting the inventor exlusive ownership of the algorithm in the second sense (preceding paragraph), is equivalent to granting her ownership of the goal, which we don't want to do. Granting her ownership in the first sense (i.e. right to the algorithm to solve a particular problem) is readily handled by copyright.

The objection might still hold though, but, considering the alterative, it is the best solution for all involved; the inventor can write software solving particular problems (or very general problems for that matter) and make money on it; she can publish the source code (but doesn't have to) and still make money on it, because she holds the copyright; she can publish articles describing the generic algorithms used by her software and still make money on the software; others can read what has been published (if anything) and try to write better software, forcing the inventor to improve her software.

Hence, there is no need for an exlusive rights system that differs from what copyright has to offer today.

One of the quid pro quos of the patent system is that, by registering, you force your invention to be made public. So you have exclusivity for the patent for its terms, and then, in theory, everyone else and his mother can begin producing the invention.

With copyright, that's hasn't really been an issue until software because artwork, books, etc. receive their value from being perceived... e.g., nobody would pay for a painting they couldn't see, a book they couldn't read. With software, though, it seems that the source code can sometimes be kept secret -- but still copyrighted -- and the user still receives its value. The creator gets to keep his codes secret BUT STILL receive copyright protection in the event it's hacked or otherwise becomes transparent. I think this is a weakness of using copyright to protect software ... (not to mention the ridiculous duration terms.)

If it could be adequately policed by USPTO, and I do agree that up until now it hasn't been, I think that patent is a much more appropriate vehicle for software.

The other distinction that I'm not sure you took into consideration above is that copyrights only provide exclusivity against those who "copied." That is, they saw your work and copied it. With patent, the owner has exclusivity even against someone who came up with the implementation independently. (The assumption being that there was no need to do so, since the applications, patents, etc. were on file at the PTO)

Therefore, the person who writes code that's protected by copyright can only protect against someone who copied his source code. Someone else who thought of the same idea and did it in the same way is free to use (but not patent --(at least currently under the first to invent rule)) his invention.

Hintjens' criteria for what is good property are interesting and sensible, but philosophically they are no less arbitrary than any other.

The concept of property is intuitive to the human mind. I think it is fair to say that it originally applied only to things that you can carry with you. The concept is useful to humans because we are a social tool-using species.

Many civilizations have made use of the intuitive understanding of property, extending it to things that you cannot carry, such as land. This seems to come rather easy. The possibility of owning land makes sense once you get used to it. However, it is not obvious to all societies. Native americans had difficulty grasping the concept when the Europeans arrived. To them, ownership of land probably made as much sense as the taboos and magic superstition of foreign societies do to us.

A peculiar thing about our civilization is that we have extended ownership to encompass abstracts, things that only exist in our minds. Someone can be the owner of e.g. a story or a judicial proceeding. You have to admit that this is rather strange. It is a large step closer to magic than owning land. On the other hand, it may be a key factor for well-functioning economic and judicial system. Ownership is the key concept of capitalism, and this magic is part of the foundation of our civilization.

Of course, this says nothing about whether software patents are good or bad. Hope you enjoyed it anyway.

The notion of property has always been related to economic technology. It used to be that we were mobile hunters and could create everything from the land around us, and only small personal items could count as property. This is why we find hunting kill sites with hundreds of discarded axe heads. It was make, use, discard.

Agriculture changed that - suddenly land became important, and goods had to be transported to and from specific places.

Money brought another change - an abstraction of property.

Some people have commented that there are still toll roads, but the question is why we don't tax every single road, or sell off the streets and highways to private firms?

The answer is that certain property systems work, while others don't. There are reasons - not philosophical ones, but real economic ones - for that. I think my criteria are a start at defining those reasons.

Incidentally, there are other criteria I considered and discarded. For instance, do property systems overlap? If so, that's usually a bad thing. But this criteria won't help us decide whether a specific single property system is good or bad.

Or, is the property system liable to monopolistic accumulation? Some property has a gravity - the more land or money you have, the more you can get. But this criteria seems too political, and argues against many successful property systems.

So the criteria are designed to support the succesful property systems I've seen and researched, and explain why those that are unsuccessful (past and present) were and are doomed.

Attempting to claim a patent over software is rather like claiming a patent over a piece of written or spoken language. It's inappropriate. A copyright protects the particular arrangement of words in a book, for example, just as a copyright over a particular arrangement of source code in a program might be appropriate. But to claim patent over a particular software solution is an inappropriate use of a particular tool. Patenting an invention, a design for a physical device or a clearly specified solution to a particular engineering problem based on a physical object is slightly different but still needs to be rigorously investigated any time an infringement is alleged. Even in the realm of such inventions, patenting is not always a flawless means of protecting the creator/designer/inventor. In software engineering this flawed nature is magnified.

Patents exist for one simple reason and that is to encourage people who have discovered a non obvious idea to share it with others who would otherwise not have access to the benefits.

eg if I discover how to turn water into fuel for transport in ways not already known and at a cost of say 10 cents a gallon, then society will probably gain a greater benefit if I can licence my discovery to others and so spread the production of water into gasoline more widely and more quickly and more beneficially to society than if the process were not revealed and production was confined to what I personally could organise and if I charged the price of other processes for the product instead of the beneft of cheaper production finding its way through the entire economy. Society grants me a patent for publishing this new knowledge/product because it would otherwise not gain the benefits were I to keep the knowledge secret.

However if the manner of doing something is obvious and can be easily done by others, such as writing a variety of programs to say achieve the outcomes of an online shopping trolley, then what is the advantage to society of giving exclusive rights, and thereby increasing the costs in return for no benefit to society, to the first person that comes long with the idea?

There is no societal advantage in this latter case and society should not lend its weight by granting patents when anyone in society can by their own endeavours achieve the same outcome ..... this is why software patents are a nonsense. ... and why people should be rewarded with a patent for truly non-obvious and truly non-replicable ideas where society at large would otherwise be incapable of doing the same for itself.

I may be being too cynical, however it does strike me that the use of patents may have also been used to stifle societal benefits also.

Taking your water into fuel example a step further, if a major oil company purchased the patent from the inventor, there is no legal means that I am aware of to dissuade the oil company from filing it away in the deepest darkest part of the basement. Likewise, as they are the owner of the patent, they could successfully defend their right to deny anyone else the ability to utilize this idea.

Thus it is my belief that patents have also been used to prevent the sharing of revolutionary ideas that would benefit the society at large.

I think tolls generally exist where the benefit of the tolled object (bridges, tunnels, motorways as opposed to smaller roads, etc) is very large for the local/regional economy but where it would be hard to otherwise get a return on the investment.

However, it is probably mostly because tax-collecting bodies (at whatever level would be responsible for the construction) would rather leave the 'central' rate of tax higher.

Add to the basic idea of that the purpose of patents are to maximize the benefit from discoveries and inventions we also need to encourage people to reach said discoveries and inventions. As it seems now patent law as I understand it gives the patent holder exclusive rights to the discovery or invention in order to reward and stimulate the patent holder to produce more benefits in the long run. If there was little or no benefit in discovery/invention the rate of discovery/invention would drop. If there was a big or huge benefit it would rise. This 'benefit' is normally the economical gain through exclusive rights, monopolies, but I can easily see rewards that are more fit to maximize the beneficial effect for sociaty as whole. First thing to understand here is the fact that monopolies and economically models have a use for restricting the distribution of said invention/discovery, and that such a restriction can slow or weaken the benefit for society. Rewarding patentholders, not with the exclusive right to control the innovation and/or discovery, but with the right to gain an amount of money according the how beneficial the said discovery/innovation is. Lets say anyone can use patented information but has to pay a part of their profit. Or something like that :)

Roads should be paid for by those who use them, through taxes paid whether the person paying the tax uses the road or not.

Government subsidy of roads distorts the transportation market. Perhaps we'd have a more extensive railroad system if highways were not built using taxpayer money. Would you see idiotic 4-way stop signs on private roads? Heck no. Or too-low speed limits on highways? Nope. What about excessively wide neighborhood streets? Nope. Why does "rush hour" exist? Because you don't have to pay for using the road. Singapore charges more to go into the city via road based on how much traffic there is at the time. What if I bike everywhere, so cause no damage to the road, unlike trucks and buses? I still have to pay the taxes to support roads. That's not fair, inefficient, and wrong.

There are actually good economic reasons for choosing a private property model for some resources, and not for others.

Should economics be the only reasons under which we consider this discussion? I think not, yet it is frequently the field on which people choose to fight this battle. What about the socialogical effect? What about the long term effect on the way we store and use information? What about the responsibility of humans to each other and to making life better rather than the so-called rights of the individual and "making my life better" attitude?

I would say that a good reason for not having software patents and for having (and enforcing) open standards is socialogical and not economic. Patents create dependancy of the users upon a single entity (the whim or economic drive of the software company). Open standards create level playing fields, permit each user the same opportunites and are not dependant upon payment to another party. Open standards do not have to waste time enforcing protection rights, open standards enhance and are enhanced by sharing models which make bad economic sense.

So, for me, we should not allow software patents precisely because doing so makes absolutely bad economic sense and great socialogical sense. Perhaps if we stopped software development from being such a "business" oriented field we would find those left behind after the mass exodus would be those actually doing it for the sake of making things better. Blocking software patents would be a good start to this. Maybe I'm just being too idealistic :o)

...

Similarly, it is clear that private home ownership is a healthier model in a modern money-based economy than state-ownership of homes.

Living here in Britain I would disagree. The national government of the 1980s introduced a policy of giving local government tenants the right to buy their rented property. Which of course many did, the housing markey boomed, then busted and we had a sustained period of depression. Now we have a housing market onto which out of control, private rented accomodation is extortianate and first time buyers cannot afford anything without first borrowing five times their combined salaries. In the past these people might have rented from their council whilst saving a deposit but - thanks to the right to buy policy - there are virtually no council properties left! The local councils have lost huge amounts of revenue that would have come from their rented accomdation and as a result local services have suffered.

No I think I would say that it is far from clear that private home ownership is a "healthier" model. But then I am not so sure that our "modern money-based economy" is a good thing either which is why I support free software.

Economics is about the production and sharing of valuable things, be they tangible or abstract.

Money is a mechanism we use in modern free market economies to manage this problem. But barter, perfect communism, or anarchy are also economic systems. All of these systems can be modelled mathematically within the conceptual framework of economics.

So it's only natural that we use economic models in order to try to understand any kind of production.

The fact that we're discussing public versus private ownership really shows that we aren't locked into a "money economy" framework.

I've been writing free software since 1992, and before that, gave my software away as shareware. The reasons were idealistic to start with, but over time I realised that the free software market is more efficient not because of ideology, but economics.

Free software succeeds because of economics. Before you jump on me, let me explain. I realise that the "dismal science" may have a bad reputation, but I'm not speaking about politics here, simply the mechanics of wealth creation through trade. When we trade things, be they ideas or products, we can both benefit.

And on this basis, some property systems create common wealth, while others reduce it.

Free software is based on rules for exchanging ideas and work that are more efficient than previous rules. That's why I say it succeeds because of economics.

You may prefer government-owned houses, but I lived in Britain during the 70's and early 80's, and I remember very clearly the time when councils started selling houses. It turned grey estates less grey, and made a lot of people a little wealthier. I doubt these rents were very important to councils, they were always pretty low. Council income crashed (iirc) because of changes in the distribution and control of money from Westminster (more direct spending).

The reason for basing the argument on economics is to provide a non-ideological argument against software patents. The people we're fighting have very good economic arguments (which just happen to be wrong). These arguments work when presented to governments. So to fight them we need to develop our own.

I've seen a lot of criticisms of patent systems in general. The reason for their existence is to encourage invention, but there's never been any way to prove that they actually accomplish this goal.

There are strong theoretical arguments both claiming that patents promote progress and that they retard it.

I'm inclined to think that in the 19th century, patents probably did successfully promote progress. Development of prototypes and commercializing an idea was a long slow process back then, and the 20 year monopoly (actually it was shorter back then, ironically) was useful as incentive to inventors.

But that all changed over the course of the 20th century.

No doubt some industries would suffer from the wholesale removal of patents, but it would be simpler and fairer than crafting complex new limits on them. And I think it would be a net win—certainly when compared to what we have now.

John Mauldin, a prominent financial guru and economic pundit says it very well...

"Intellectual property is a cornerstone of our economy. If you cannot protect it, whether it is software, chip designs, business processes, or a new widget created in someone's garage, it will cause serious problems in a market-based economy. One of the reasons that there is not more creativity and economic growth in the developing world is the lack of patent protection and outright theft of ideas. Why go to the trouble of creating, or sharing your creation, if someone is going to steal it?"
http://www.investorsinsight.com/thoughts_va.aspx?EditionID=411

In a market that uses invested capital, pays salaries, and provides a profit for the capital put at risk, I'm just not sure I see in the above discussion how a weaker, open source system fosters more risk taking or the exploration on projects that are into completely new, unexplored arenas (v. incremental improvements).

I think even in the 19th century, patents may been more of a hindrance to progress. I've read where many people were working on improvements to the steam engine before Watts got his patent. Then progress halted for a period of time while he sued other inventors and so on. It could have been that several people could have made the breakthrough. Now, were these people all motivated by the hope of the monopoly payoff? Maybe. But there are many examples of people innovating with competition as the motive and without the hope of monopoly. Against Monopoly has some good information on this, including somewhere there a pointer to a draft of a book by economists David Levine and Michele Boldrine that covers many examples.

It's pretty clear to me that patents have both positive and negative impacts on innovation. The question is when and under what circumstances the benefits outweigh the costs.

Some argue that they never do, others (like the developing world quote mentioned above) that they always do, and it seems to me that the most probable case is that there are different regimes where one or the other effect dominates.

Regretably, it's impossible to do real science on this problem, because you can't set up identical circumstances (no control cases!).

You can observe that there is less innovation in developing countries and that developing countries have less patent protection, but concluding that one causes the other is hopelessly naive. There are so many different variables involved that all you can hope to do is talk yourself into believing more strongly whatever it was you already believed.

The closest you can come is to find pairs of countries which are as similar as possible in all ways except patent law, and then compare objective metrics of innovation in them. Of course, this is very hard, because the most common "objective metric" for innovation is "number of patents granted per year"! (I do hope it's clear why that won't work for us here!).

That means we're left with hand-waving theoretical arguments (which regrettably is what most of economics is based on). So I don't claim to have a strong scientific basis for my belief, but I do believe that patents have a net benefit when:

The material cost of bringing an idea to market is high (requires lots of monetary capital).

The material cost of duplicating an idea and marketing it is very low (copies are easy to tool-up for).

There are very limited network effects: no standardized interfaces or formats to worry about.

Reverse engineering is easy (transparency of implementation).

In the 19th century most new, patented technology had to interface with the natural world, not other pieces of technology. Reverse engineering of mechanical devices was pretty easy (anybody could look at a new wagon hitch or brake and understand how it worked). While tooling was somewhat difficult, most mechanical systems could be built with more or less the same tools. Thus, it cost a lot to start up a factory, but once you did, that factory could probably make just about anything that could be made then. That meant that "stealing" an idea and making copies to undersell the original inventor was a pretty successful strategy.

Today, the picture is very different. Most technology today must interface with other technology, so any "patented interface" is a major hinderance to new innovation. Reverse engineering is now a very difficult and specialized discipline with either software or electronics, requiring a considerable investment in tools and skills. There are also many different manufacturing processes, so it's not so easy to be "tooled up for everything", which makes being a copycat artist a bit more difficult.

What these factors together accumulate to is that patented technology now has a much stronger negative effect in that it impedes further progress, while the benefit is increasingly obviated (the patented ideas are so complicated that the process of reverse engineering them is itself protection to the original inventor). And while copying, once you have the original plate, is easy in any printing-derived process (chips, PCBs, software, etc), creating the plate is a lot of work, no matter whether the ideas implemented are new or not.

In fact, of course, this means that we are closer to a printing and copyright model: it's not the ideas that are such an investment, but particular implementations of those ideas. It's just fine to have 15 different novels which all tell basically the same story (or many genre writers would be in a lot of trouble!), but not to copy the exact same text. Likewise, it should be fine to have 10 different video cards that all do basically the same thing, but have different chipsets and firmware.

There are other industries where the situation is still close to the 19th century case, but IMHO, these are a small minority, and those negative impacts are simply not worth the burden that the patent system is on other industries. The strongest pro-patent case today can probably be made in the pharmaceutical industry, but given the kinds of abuses this system has led to, I can't help but think that we're better off with a non-patent based approach, even there.

The structure that results from the phenomenon of "definition" and "system of enforcement" is perhaps more profound than one would casually observe. One could, for example, on a personal level, create a relationship between "health" (as the definition) and "energy" (as the system of enforcement.) Or perhaps one might consider "values" (as the definition) and "morals" (as the system of enforcement).

At first impression this structure seems to have great mobility when placed in a Neo-Confucian environment...

"There is no intrinsic reason that land or potatoes should be different from ideas, time, or air. Anyone who argues that it is “right” or “wrong” to define and enforce certain types of property must prove this using more than just rhetoric and dogma."

Even the patent extremists don't usually go so far as to claim there is no intrinsic difference between ideas and land or potatoes. They do often put forward the fallacious argument that patents should be considered desirable (in every field and every industry) unless proven otherwise.

"The people we're fighting have very good economic arguments (which just happen to be wrong)."

No they don't and that's like saying the Discovery Institute has very good scientific arguments for ID which some other people just think may be wrong. In fact, and as the president of the FFII should surely know as well as anyone, the software patent militants have no credible economic arguments whatsoever and have, unsurprisingly, determinedly ignored the economics and the economic evidence.

If this article had represented the full force of the FFII's arguments when I first encountered the software patent issue, when I was entirely näive about patent system economics and law and armed only with moral outrage at the appalling patents I saw, I might well have believed the nonsense and lies disseminated by the EPO et al and eventually formed an opinion similar to that of the second comment:

"I think the only problem with software patents is that the USPTO is not yet able to differentiate the "new ideas" from those that already exist. Once that's cleared up, and it only makes sense that it will be, I believe that exclusive ownership of ideas will provide more innovation for the economy. Notice how I state this as an opinion and not some sort of analysis."

Luckily, the FFII at the time took a relentlessly hard-nosed economic approach, forcefully debunking the patent mythology and fallacies that had somehow insinuated themselves even into my thinking (someone who'd never really thought about the issue or had any experience of the patent system before), and instead of having to fear accusations of idealistic zealotry and economically unsound socialist fantasising by the pro-software patent proponents, thanks to the FFII and the material available at its website, I found it easy to hoist those economically illiterate accusers with their own petards. If the FFII has now forgotten just where the irrational economic fantasy and extremist zealotry is coming from, and is going to not just fall but willingly jump into the old patent system fallacy traps and then scratch feebly at their walls, that is very sad.

I think of patents as a rule. A patent tells you what you cannot do without a license. It might be peeling potatoes, walk in a strange way or process data in a clever way.

The claims define this rule. If you do something that falls within the claims, you infringe.

It is very simple. I mean the exclusion principle is very simple.

The hard part is to tell if there is any difference between peeling potatoes and processing data. Some say it's the same thing. Some say there is an "intrinsic difference".

But it should not matter very much, because the legislators have already made up their mind and provided us with a nice set of instructions. They say that if you have made an invention, you might get a patent if it fulfills some pretty well defined criteria. The invention must be susceptible of industrial application, be new and and involve an inventive step. Then they say some achievements are not inventions in the first place, like programs for computers.

If the legislators had economical, philosophical or judical reasons for these instructions, or a mix of everything, does not matter very much.

What matters is that European patent law as it stands, makes it very easy to reject a patent application that contain claims that would force you to pay for using a computer program.

As he the UK Judge just said in the Macrossan verdict:

"We think the framers of the EPC really meant to exclude computer programs in a
practical and operable form. They meant to exclude real computer programs, not just
an abstract series of instructions."

If the UK Judges are not made obsolete by EPLA, we might have a bright future here in Europe.

If the legislators had economical, philosophical or judical reasons for these instructions, or a mix of everything, does not matter very much.

It's one of looking at things. The EPC does not allow patents on software. Thus the EPO acts illegally in granting such patents, and its technical courts of appeal make bogus rulings in upholding such patents.

However I wrote my article as a counter-argument to "all property is good, software patents are property, thus software patents are good" logic that underlies most pro-software patent rhetoric.

There were, I think, very sound economical, philosphical, and judicial reasons for not allowing patents on software in the EPC, and it's relevant to remember what these were.

The article initially states that "the process of turning common lands into shared property, and then into private domains" is what is meant by the tragedy of the commons, and then conversely goes on to imply that private property is understood as the solution by Hardin, the idea's author. However, this is an inaccurate usage of the idea of the tragedy of the commons. Thus, I'd like to offer a bit of clarification.

The idea refers to the overuse and thus diminishing (and possibly the ultimate destruction) of a shared good (e.g., a pasture) when all parties who can access it have no limits placed on their individual use. The tragedy is that without any limits enforced on individual use, the commons will be overused by individuals seeking to maximize their own benefit at the expense of the larger public good. There are concentrated benefits to an individual exploiting the commons, whereas the individual doing the exploiting distributes the costs of his/her exploitation across the commons, thereby harming society as a whole. While Hardin discusses privatization as a possible solution to the tragedy, he concludes that resources are commons and as such are best served by management in the public interest. Indeed, one of the main points of the original academic article is that government is necessary in order to regulate access to public goods. Thus, government must establish limits on logging of forests, emissions from automobiles and power plants, automobile access to urban centers, and so on; ultimately, the point is that humans must be forced to limit their reproduction in order to save the planet, but that's beside the point here. As the Wikipedia entry points out, Hardin's focus is on resources that are unmanaged, and so his article is not an argument for privatization and private property, per se.

Author information

Biography

Pieter Hintjens is the CEO of iMatix Corporation, and the author of numerous free software tools published by iMatix. He wrote his first GPLed software (Libero) in 1992. He was the main author of the AMQP messaging protocol specification, and iMatix's OpenAMQ messaging software handles around 1bn messages a day for a large bank. He is the past president of the FFII, an association which has fought software patents and defended open standards and competition since 1999. In 2007 he founded the Digital Standards Organization.